What Types of Deeds Are Recognized in Hawaii?
Hawaii law recognizes three basic types of deeds for transferring real estate ownership during the owner’s life. Each Hawaii deed form provides a different level of warranty of title—the current owner’s guarantee that the property’s title is valid and free of liens or other title issues. Hawaii has no statutory deed forms. Hawaii deeds are instead based on common law principles.
Hawaii Quitclaim Deed Form
A Hawaii quitclaim deed form transfers real estate without warranty of title. The current owner does not guarantee a good, clear title. The new owner receives whatever interest the current owner can legally transfer. The new owner assumes all risk of known or unknown problems with the title.
Quitclaim deeds are best-suited to transactions involving little or no consideration exchanged for the transferred real estate. Hawaii quitclaim deeds typically state that the current owner “remises, releases, and forever quitclaims” the property to the new owner.
Hawaii General Warranty Deed Form
A Hawaii general warranty deed form transfers real estate with complete warranty of title. The current owner guarantees that the new owner will receive a good, clear title. The guarantee covers the property’s entire chain of title. The current owner therefore bears the risk of all potential problems with the property’s title not expressly excluded from the warranty.
General warranty deeds are the deeds most commonly used for sales of residential real estate the buyer will live in. Hawaii general warranty deeds typically state that the current owner “grants, bargains, sells, and conveys” the property to the new owner. The warranty of title terms must be expressly written in a Hawaii general warranty deed.
Hawaii Limited Warranty Deed Form
A Hawaii limited warranty deed form transfers real estate with warranty of title limited to the current owner’s ownership period. The current owner guarantees a good, clear title, but the guarantee only covers issues that arose while the current owner held title. The new owner bears the risk of any title problems caused by events earlier in the property’s chain of title. Hawaii courts and lawyers also use the term special warranty deed—which is the same as a limited warranty deed.
Limited warranty deeds are the deeds most often used for sales of commercial real estate. Hawaii limited warranty deeds typically state that the current owner “grants, bargains, sells, and conveys” the property to the new owner. The terms of the deed’s limited warranty—including that the warranty only applies to the current owner’s ownership period—must be expressly written in a Hawaii limited warranty deed.
What Types of Estate Planning Deeds Are Used in Hawaii?
Hawaii law recognizes other, more specialized deed forms—including deeds designed to transfer ownership upon the owner’s death. The following Hawaii estate planning deeds let the current owner keep the property during life and pass title to a named beneficiary outside probate when the owner dies.
Hawaii Transfer-on-Death Deeds
A Hawaii transfer-on-death deed—sometimes called TOD deed or beneficiary deed—allows for transfer of property outside probate upon the owner’s death.1 The property owner records a TOD deed naming a beneficiary while the owner is living.2 But a Hawaii TOD deed is fully revocable until the owner’s death. It also does not limit any of the owner’s rights in the property during life—such as the right to sell or mortgage it.3
Hawaii Life Estate Deed
A Hawaii life estate deed works similarly to a TOD deed, but the future owner’s rights during the current owner’s life are more concrete. A property owner who creates a life estate deed typically reserves a life estate to him- or herself and names another person—called the remainderman—who receives the property when the owner dies. Because a recorded life estate deed gives the remainderman a vested right to future possession of the property, the current owner’s rights are more limited than with a TOD deed. For example, an owner who recorded a life estate deed can sell only the life estate—not complete ownership of the property—to a third party.
What Are the Ways in Which Multiple Owners Can Jointly Own Hawaii Real Estate?
Hawaii law allows more than one person to hold title to the same real estate. Co-owners in Hawaii have three co-ownership options to choose from.
Tenancy in Common
Co-owners who are tenants in common hold separate, distinct ownership interests that they can transfer separately. A tenant in common’s interest is usually described as a fraction or percentage of the property. The interest becomes part of a tenant in common’s probate estate at death—unless he or she records a TOD deed or uses another non-probate transfer method.
A Hawaii deed that transfers real estate to two or more new owners creates a tenancy in common unless the deed designates a different co-ownership form or the new co-owners are trustees or an estate’s personal representatives.4
Co-owners who are joint tenants mutually hold the same property’s title. Joint tenancy is defined by the right of survivorship. When one joint tenant dies, the other joint tenant automatically receives the deceased joint tenant’s share of the property.5 The right of survivorship allows real estate to avoid probate—which makes a deed that creates a joint tenancy a useful estate planning tool. Hawaii allows a sole owner to record a deed creating a joint tenancy with right of survivorship between the owner and another person.6
Tenancy by the Entirety
Hawaii also recognizes tenancy by the entirety—a co-ownership method permitted only for co-owners who are married or reciprocal beneficiaries.7 Tenancy by the entirety has a right of survivorship like joint tenancy and provides greater protection against creditor claims. Hawaii law lets tenants by the entirety transfer real estate to a revocable living trust and keep the benefits of tenancy by the entirety.8
Real Estate Ownership through Trusts
Two or more persons can effectively co-own Hawaii real estate as co-beneficiaries of a living trust. The trust holds legal title through its trustee or co-trustees, who may also be beneficiaries of the trust. Hawaii adopted the Uniform Trust Code approach to trusts starting January 1, 2022.9
What Are the Rules for Spousal Ownership of Hawaii Real Estate?
Hawaii has additional rules for property ownership and deeds when an owner or person named in a deed is married. Property owners should consider Hawaii’s spousal ownership rules when creating deeds and forming estate plans.
Hawaii Homestead Rights
Some states require a spouse’s signature on a deed that transfers a married owner’s principal residence–or homestead. A non-owner spouse need not sign a deed that transfers a Hawaii homestead titled solely in the other spouse’s name.
Spousal Intestate Share
A surviving spouse’s intestate share is the portion of a deceased spouse’s probate estate–including real estate–that the surviving spouse receives if the deceased spouse leaves no will. A spouse’s intestate share depends on the spouses’ other surviving relatives:
- The surviving spouse receives the entire estate if the deceased spouse has no surviving children or parents.
- The surviving spouse receives the entire estate if all children of either spouse are both spouses’ children.
- The surviving spouse receives $200,000 plus three-fourths of the remainder if the deceased spouse has a surviving parent but no surviving children.
- The surviving spouse receives $150,000 plus half of the remainder if the surviving spouse has surviving children who are not the deceased spouse’s children.
- The surviving spouse receives $100,000 and half of the remainder if the deceased spouse has surviving children who are not the surviving spouse’s children.10
Spousal Elective Share
A surviving spouse’s elective share is a guaranteed interest in a deceased spouse’s estate. A surviving spouse in Hawaii can claim the elective share if the deceased spouse’s will gives the surviving spouse a lesser interest or nothing at all. The elective share is a percentage of the deceased spouse’s augmented estate–which includes probate assets and some non-probate assets owned by either spouse.11 The percentage used to calculate the elective share depends on how long the couple was married. It can be as low as 3 percent and as high as 50 percent.
Hawaii’s spousal elective share law also includes a supplemental share of up to $50,000 if the normal calculation would result in a spousal share below $50,000.
Where Are Deeds Filed in Hawaii?
Hawaii maintains land records at the state level—not at the county level like most states. Deeds that transfer Hawaii real estate are recorded with the Hawaii Bureau of Conveyances’ Honolulu office.12 The Bureau of Conveyances maintains two separate recording systems: a Regular System and a Land Court System. A Hawaii property will be included in one of the two systems. Some properties are included in both.
What Is the Difference Between the Regular System and Land Court System?
Real estate is part of the Land Court System—which is a torrens sytem—if it was registered with the State of Hawaii at some point since the 1900s. All non-registered properties are part of the Regular System. Transfer requirements are stricter for Land Court properties than for properties in the Regular System. Recording a deed in the correct system is necessary to provide formal notice of the transfer to third parties.13
Note: Hawaii’s Regular System for land records is similar to the systems used in many other states. Recording in the Regular System puts a deed in the public record and provides constructive notice to third parties. The Land Court System officially registers land ownership with the state. A property registered in Land Court was assigned an official certificate of title following a court finding that the owner held undisputed title. A certificate of title is the state’s certification that the current owner holds absolute title. A property registered in Land Court can be transferred only in Land Court.
How to Select the Correct Recording System
There are two methods for determining the correct system when recording a Hawaii deed. Each method relies on the label the Bureau of Conveyances placed on the prior deed—the deed that transferred the property to the current owner—when it was recorded:
Label placement. The area of the deed where the label is placed indicates the recording system in which a deed was recorded.
- Deeds with a Bureau of Conveyances label on the top right corner are in the Regular System.
- Deeds with a Bureau of Conveyances label on the top left corner are in the Land Court System.
- Deeds with labels on both the top right and left corner are Double System documents recorded in both systems.
Document numbers. The document number assigned to a deed indicates the recording system in which the deed was recorded.
- Document numbers for Regular System deeds depend on the recording year. Deeds filed prior to 1990 have assigned liber (book) and page references (e.g., 12546/552). Deeds filed from 1990 to 2011 have document numbers that consist of the recording year and a document number (e.g., 1990-002230). Deeds filed from 2012 to the present have eight-digit document numbers issued consecutively.
- Deeds in the Land Court System have document numbers that start with a letter T, followed by a series of numbers up to seven digits.
Does Hawaii Allow Electronic Recording (E-recording)?
The Hawaii Legislature has adopted the Uniform Real Property Electronic Recording Act.14 A deed filed in an electronic format with electronic signatures that meet the law’s requirements qualifies as an original, signed document that can be accepted for recording.15
The Bureau of Conveyances accepts e-recorded documents filed through one of its approved vendors. Recording electronically may result in increased costs due to vendor charges. The Bureau of Conveyances provides more information about e-recording on its website.
What Is the Cost to File a Hawaii Deed?
The Hawaii Department of Land and Natural Resources sets the fees required to record Hawaii deeds.16 The fee for recording a deed in the Land Court System is $36.00 for up to 50 pages and $101.00 for deeds over 50 pages. The fee for recording a deed in the Regular System is $41.00 for up to 50 pages and $106.00 for deeds over 50 pages.
Does Hawaii Charge a Transfer Tax for Real Estate Transfers?
Hawaii charges a conveyance tax that must be paid when a deed transferring Hawaii real estate is recorded.17 The amount owed is based on the full, actual consideration given for the property.18 Higher consideration transfers are taxed at higher rates.
Conveyance tax rates start at $0.10 per $100.00 of consideration up to $600,000.00 and increase to as high as $1.00 per $100.00 when the consideration reaches $10 million and above.19 Higher rates apply to deeds that transfer a condominium or single-family residence to a buyer who does not qualify for a county homeowner’s property tax exemption.20
The seller must pay the conveyance tax within 90 days of the transaction and before the deed is stamped with a seal upon filing.21 A deed must have a seal showing payment of conveyance tax before it can be recorded.22
Which Deeds Are Exempt from Hawaii’s Transfer Tax?
Hawaii’s conveyance tax statute lists 17 categories of recorded documents that are exempt from the tax.23 Common exempt deeds include:
- Deeds correcting a previously recorded deed;24
- Deeds transferring real estate for $100.00 or less in consideration;25
- Deeds between spouses, parent and child, or reciprocal beneficiaries for nominal consideration;26
- Deeds between spouses created pursuant to a court order in a divorce case;27
- Deeds transferring real estate from a testamentary trust to a beneficiary;28
- Deeds transferring real estate from the person creating a revocable trust to the revocable trust;29
- Deeds transferring real estate from a revocable trust to a trust beneficiary who is also the person who created the revocable trust;30
- Deeds that conform to the transfer-on-death deed authorized under Hawaii law.31
Does Hawaii Require Any Additional Forms When Recording a Deed?
A person who wishes to record a deed must submit the deed to the Bureau of Conveyances with one or more of the following forms:
- Conveyance tax certificate (Form P64-A). A completed and signed Form P64-A must be filed with a deed that requires payment of conveyance tax.32 The form provides information about the transaction and the amount of tax due.
- Conveyance tax exemption (Form P64-B). A completed and signed Form P64-B must be filed with a deed that is exempt from conveyance tax.33 The form provides information about the transaction and states the reason for the exemption.
- Business entity certificate of good standing. A business entity recording a deed transferring a Land Court System property to the entity must show that the entity exists and is in good standing. A certificate of good standing from the secretary of state (or comparable office) of the entity’s charter state or a signed certification letter from a licensed attorney are usually sufficient.34
- Hawaii Rev. Stat. § 28-527-5.
- Hawaii Rev. Stat. § 28-527-9(3).
- Hawaii Rev. Stat. § 28-527-12.
- Hawaii Rev. Stat. § 28-509-1.
- Hawaii Rev. Stat. § 28-509-2.
- Hawaii Rev. Stat. § 28-509-2.
- Hawaii Rev. Stat. § 28-509-2.
- Hawaii Rev. Stat. § 28-509-2(b).
- Hawaii Rev. Code §§ 30-554D-101, et seq.
- Hawaii Rev. Stat. § 30A-560-2:102.
- Hawaii Rev. Stat. § 30A-560-2:202.
- Hawaii Rev. Stat. §28-502-83.
- Hawaii Rev. Stat. §28-502-83.
- Hawaii Rev. Stat. §§ 28-502-121, et seq.
- Hawaii Rev. Stat. §§ 28-502-122; 28-502-31(e).
- Hawaii Rev. Stat. § 28-502-25(a).
- Hawaii Rev. Stat. § 14-247-1.
- Hawaii Rev. Stat. § 14-247-2.
- Hawaii Rev. Stat. §§ 14-247-2(1)(A)-(1)(G).
- Hawaii Rev. Stat. §§ 14-247-2(2)(A)-(2)(G).
- Hawaii Rev. Stat. § 14-247-4.
- Hawaii Rev. Stat. § 14-247-5.
- Hawaii Rev. Stat. §§ 247-3(1)-(17).
- Hawaii Rev. Stat. § 247-3(3).
- Hawaii Rev. Stat. § 247-3(5).
- Hawaii Rev. Stat. § 247-3(4).
- Hawaii Rev. Stat. § 247-3(12).
- Hawaii Rev. Stat. § 247-3(13).
- Hawaii Rev. Stat. § 247-3(14).
- Hawaii Rev. Stat. § 247-3(14).
- Hawaii Rev. Stat. § 247-3(17).
- Hawaii Rev. Stat. § 14-247-6(a).
- Hawaii Rev. Stat. § 14-247-6(b).
- Hawaii Land Court Rule 58(2).